Klepper v. Borchsenius
| Citation | 13 Ill.App. 318,13 Bradw. 318 |
| Parties | JACOB PETERSON KLEPPERv.CHARLES J. BORCHSENIUS. |
| Decision Date | 31 May 1883 |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of La Salle county; the Hon. GEORGE W. STIPP, Judge, presiding. Opinion filed July 27, 1883.
This suit was brought by appellee to recover from the appellant the balance due for goods sold, and also for contribution from the appellant upon the ground that he was a cosurety with him upon a promissory note and had paid more than his proportionate share. The note upon which the appellee alleges he and the appellant were co-sureties is as follows:
TOWN OF MISSION, LA SALLE COUNTY, ILLINOIS.
+-------------------------+
¦$500.¦February 10, 1875. ¦
+-------------------------+
Two years after date for value received, we, or either of us, promise to pay Ole Hanson Histal, or bearer, five hundred dollars, with interest at ten per cent. per annum.
CHARLES J. BORCHSENIUS.
Jacob his + mark Peterson, Sen., 100.
Indorsements of interest for 1876-7: “Jacob Peterson has this day (the 3d day of October) paid one hundred dollars and ten dollars in interest which he signed for in the year of 1878.”
It appeared in evidence on the trial below that Peter G. Peterson was the principal in the note and obtained the money for which the note was given, and that Goodmund Peterson paid one third of the note and the appellant paid the amount of one hundred dollars and the interest, and that the appellee paid $85.20 more than one third of the note.
It also appeared in evidence that the appellant at the time he signed the note at the request of the principal refused to sign it and be bound to pay more than $100, and not being able to write his name, the principal in the note wrote the name “Jacob Peterson, Sen.” and upon the appellant insisting upon the limitation of his liabilities to $100, the principal in the note wrote the figures 100 after his name as appears upon the face of the note. This evidence being before the jury, the appellant offered to show by the payee of the note that the principal of the note told him that the appellant would only sign for $100, and showed him, the witness, the figures 100 after appellant's name as expressing the amount for which he would sign; that the witness, the payee of the note, then stated to the principal that it would make no difference, as the others were good enough for the face of the note, and thereupon accepted the note and paid the money to said Peter. Upon objection, the court excluded the offered proof and appellant saved his exception, and this action of the court is assigned for error in this court. The court below held that the note made out a prima facie case in favor of the appellee for so much as he had paid for the appellant, and to overcome such case the appellant must show some agreement between himself and the appellee whereby the defendant was relieved from paying his full share on the note. The appellee recovered, and the defendant below appealed.
Mr. J. H. FOWLER and Mr. CHASE FOWLER, for appellant; that a surety has a right to prescribe the terms and conditions on which he will assume a responsibility, cited Ryan v. Trustees, 14 Ill. 20; Finney v. Condon, 86 Ill. 81; Keith v. Goodwin, 31 Vt. 268; Oldham v. Brown, 28 Ohio, 41; Adams v. Flanagan, 36 Vt. 407; Brandt on Suretyship and Guaranty, p. 315, § 224.
The contract of suretyship is a collateral one, independent of, and consistent with, the written one: Brandt on Suretyship and Guaranty, § 226; Flynn v. Mudd, 27 Ill. 323; Kennedy v. Evans, 31 Ill. 258; Ward v. Stout, 32 Ill. 400; Robertson v. Deatherage, 82 Ill. 511; Smith v. Peoria County, 59 Ill. 412; Glover v. Milkin, 85 Ill. 218; Comstock v. Gage, 91 Ill. 328.
A surety who extinguishes a debt for less than the full amount can only recover from the principal the value of what he paid: Coggeshall v. Ruggles, 62 Ill. 401; Brandt on Suretyship and Guaranty, § 182.
As to bill of exceptions: Myers v. Phillips, 68 Ill. 269; Weldon v. House, 40 Ill. 92; Wallahan v. The People, 40 Ill. 103; Village of Hyde Park v. Dunham, 85 Ill. 571.
Mr. SAMUEL RICHOLSON, for appellee; cited Bowden v. Bowden, 75 Ill. 111; Nomaque v. The People, Breese, 150; Suver v. O'Riley, 80 Ill. 241; Myers v. The People, 26 Ill. 173; Griffith v. Furry, 30 Ill. 254.
A judge has no power to sign and seal a bill of exceptions after the term at which the cause was tried or after the time fixed by the order of the court therefor has expired: O'Hara v. The People, 40 Ill. 534; Evans v. Fisher, 5 Gilm. 456; Burst v. Wayne, 13 Ill. 665; Underwood v. Hossack, 40 Ill. 98; Magill v. Brown, 98 Ill. 238.
Before expressing our views upon the merits of the case we will dispose of the motion made by appellee to strike the bill of exceptions from the record which was taken with the cause. It appears from the record originally filed in this court that the bill of exceptions was presented to and signed by the judge after the expiration of the rule entered of record, but by the additional record taken in connection with the former it appears that the rule to file the bill was first extended for ninety days by agreement of the parties and a further extension granted by the court in term time and before the former rule expired, which last rule was complied with by presenting the bill to the judge before its expiration. The judge took the bill for examination and held it for some time, when he signed it, and the record shows that the appellee consented that the same might be filed nunc pro tunc and within the time limited by the last extension of the rule. A party presenting his bill to the judge within the rule is not to be prejudiced by the action of the judge in neglecting to sign it until the rule expires, and as to the propriety of the court extending the rule from time to time, we are of the opinion that a party consenting that the bill may be filed within the time limited by such extension of the rule can not for the first time urge in this court that such extensions were improperly granted, but must be treated as having waived any improper action of the court in that regard. The motion should be overruled. As counsel urge no error upon that branch of the case involved in the claim for the goods we shall not notice it.
The most serious questions in the case arise upon the action of the court in excluding the offered evidence and in its charge to the jury. It is quite evident that the court below considered that no contract made by the appellee with the principal of the note or with him and the payee thereof would exonerate him from the liability to contribution in favor of the appellant as a co-surety, but to have that effect such agreement must be made with the appellee.
It may be freely admitted that the note was the only proper evidence of the contract between the parties to it, the makers and the payee, and this upon the familiar principle that a written agreement can not be varied by parol evidence. But is the note alike conclusive as an instrument of evidence, between the makers in determining the relation they respectively sustain as to each other? The right to contribution among co-sureties does not necessarily depend upon any contract between them but is founded in doctrines of equity, and formerly was enforced in courts of equity only, the rule applied being that “equality is equity” among persons standing in the same situation.
Subsequently courts of law took jurisdiction of actions for contribution on the ground that as equity and good conscience required that as among co-sureties there should be equality of burden, an implied assumpsit arose in favor of the one paying more than his proportionate share of the common debt, and which would support an action at law. DeColyar on Guars. and Sureties, 334-36.
The right of the plaintiff to sustain his action for contribution against a co-surety does not depend upon the terms or character of the instrument by which they become bound, but upon the relation they actually sustain to each other...
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